Shelby County Tries To Reveal The Authors Of Nearly 10,000 Anonymous Internet Comments

from the free-speech-means-something-different-apparently dept

We've had plenty of stories about attempts to reveal anonymous commenters. Time and time again, we've pointed out that there needs to be a very high bar for legally requiring the identification of such commenters, because the right to anonymous speech is recognized by the courts as being protected by the First Amendment. Yet, many seem to ignore this -- and quite frequently we even see government officials themselves seeking to uncover anonymous commenters. However, as Paul Levy has pointed out, Shelby County, Tennessee has taken an attempt to uncover the identities of anonymous commenters to new levels: seeking the identities on somewhere around 10,000 anonymous comments posted to the website of Memphis' local newspaper, the Commercial Appeal.

The link explains the reasoning behind this, but the short summary is that Shelby County (home to Memphis) is trying to push back on a state law. The reasons Shelby is pushing back may be noble (it appears to feel that the reasons for the law itself are based on racism), but even so, that's no excuse for stripping away anonymity on thousands of comments. Levy is helping in trying to block these subpoenas:

The Commercial Appeal, standing on its own First Amendment rights as well as the rights of customers who have registered to post comments on its web site, has served Rule 45 objections to the subpoena. The objections, which I signed along with Lucian Pera, long-time counsel to the Commercial Appeal, argue that this theory – assuming that it is the basis for the subpoena – is not a sufficient reason for depriving members of the public of the First Amendment right to debate the propriety of government policy on an anonymous basis. In addition, we argue that because the subpoenas have been issued by government bodies, they are precluded by federal statutes that limit government access to such information to cases involving a probability of criminal wrongdoing. Indeed, the very same firm that is representing Shelby County was forced to withdraw a subpoena on behalf of the City of Memphis, seeking to identify a blogger who criticized the city's police chief, for the same statutory reasons.

Furthermore, he points out that the attempt to reveal such a massive number of commenters, indiscriminately, is somewhat breathtaking. The very scale of the attempt clearly suggests that the goal here has little to do with actually uncovering illegal activities, and is almost entirely about creating a chilling effect on public speech. Even if that speech itself is reprehensible (such as racist commentary), that doesn't mean that we should support such a blanket subpoena wiping way First Amendment rights.

Even apart from the question whether the legal theory behind the subpoena can meet the test of a compelling state interest, needed to overcome the right to speak anonymously, is the sheer indiscriminateness of the subpoena, seeking to identify everybody who spoke about the issue underlying the legislation regardless of whether they favored the consolidation or opposed it, and whether they expressed racist views or not. In past cases involving Doe subpoenas, it has often seemed to me that the plaintiff had the germ of a good case, and perhaps a reason to identify one or two critics, but then obscured the merit of its case by throwing everything but the kitchen sink into the subpoena. Here, the very breadth of the subpoena suggests that County's motive is to chill public discussion of an important policy question, by sending the message that if you speak out, you will be subpoenaed.

In the dozen years that I have been litigating cases involving Internet anonymity, I cannot recall any case involving close to so many anonymous speakers. In Pilchesky v. Gatelli, the chair of the Scranton Pennsylvania City Council sought to identify about ninety different Scranton citizens who has posted hurtful comments about her on a community message board established by one of her critics, and in Donato v. Moldow, officials of the Borough of Emerson, New Jersey sought to identify the authors of more than one hundred critical comments. In both of these cases, the trial courts upheld the right to speak anonymously and quashed the subpoenas (with a small number of exceptions in the Pennsylvania case – and those identities were preserved on appeal). A large number of posters were also involved in my first case involving a subpoena to identify anonymous speakers, when Northwest Airlines sought to identify flight attendants who had advocated a "sickout" during collective bargaining negotiations.

Shelby County subpoena outstrips these cases in indiscriminateness by a factor of ten or even a hundred – more than 9300 comments remain on the stories, and the removed comments likely take the number of comments at stake in this case beyond ten thousand. Many of the comments were posted by repeat customers (we can tell because, as on most newspaper web sites, only registered users can post comments), but the estimate so far is that more than 2000 separate people are facing possible denial of the right to speak anonymously. Even most file-sharing cases pale by comparison: the recording or movie companies typically sue and seek to identify only hundreds of anonymous uploaders at a time.

The "right" to anonymous speech isn't exactly a right, is it? Even a quick visit to wikipedia gets you two opposites:

"Anonymous speech
In Talley v. California, 362 U.S. 60 (1960), the Court struck down a Los Angeles city ordinance that made it a crime to distribute anonymous pamphlets. In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Court struck down an Ohio statute that made it a crime to distribute anonymous campaign literature. However, in Meese v. Keene, 481 U.S. 465 (1987), the Court upheld the Foreign Agents Registration Act of 1938, under which several Canadian films were defined as "political propaganda," requiring their sponsors to be identified."

Further, the pro-anonymous decisions are specifically for political pamphlets, and not for general free speech. There is very little out there that says you have some right to say whatever and not be held liable for it.

There is a point where the protection of "anonymous" postings meets up with the liability of that speech, and the anonymous factor should never outweight responsiblity. Otherwise, anything could be said as anonymous, without any fear.

Anonymous is generally to protect you from other citizens who may not agree and may make your life miserable for stating it. It's not intended to protect you if you make false, libelous, or have you statements.

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"Anonymous is generally to protect you from other citizens who may not agree and may make your life miserable for stating it. It's not intended to protect you if you make false, libelous, or have you statements."

Well, if this was true, then about 110% of the internet should be in jail right now, you and me included.

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"Anonymous is generally to protect you from other citizens who may not agree and may make your life miserable for stating it. It's not intended to protect you if you make false, libelous, or have you statements."

If thats the case, then I know one little shill on this site that must be shitting his pants.

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Nope. Read carefully. I say "I think" and "in my opinion" very often. Mike has recently shown how that is often enough to protect a poster. We are allowed to have opinions, even if they are wrong. If that wasn't the case, Mike would have had to shut down a long time ago.

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You must be an English teacher...or a troll, if the latter ill be mice this time and explsin a few little known facts about Wikipedia.

Actually statistically speaking Wikipedia is just 0.02% less accurate than the average college text book (or in some cases a medical journal). When you submit an article, it's looked over for it's citations and accuracies by the editors.

Don't get me wrong, I would definitely not condone citing Wikipedia in an MLA college essay for two reasons. One major reason is because MLA writing style requires you to cite not only the article you got your information from, but if it was from an essay or web page, you have to cure the articles that are cited (my wife is also an English teacher and she had explained this to me). The other reason is that most of the articles on Wikipedia are in APA format. So on the whole, if you are stuck in a jam to find resources, you can extrapolate information and base knowledge on the essay you wrote from Wikipedia, but you read their online sources for the citations.

That being said, on a comments board such as this, it is perfectly valid to use Wikipedia...especially for translating legalese into things everyone can understand.

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In Talley v. California, 362 U.S. 60 (1960), the Court struck down a Los Angeles city ordinance that made it a crime to distribute anonymous pamphlets. In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Court struck down an Ohio statute that made it a crime to distribute anonymous campaign literature. However, in Meese v. Keene, 481 U.S. 465 (1987), the Court upheld the Foreign Agents Registration Act of 1938, under which several Canadian films were defined as "political propaganda," requiring their sponsors to be identified."

Not sure here, but I believe the most recent Supreme Court case would prevail.

This is what McIntyre v. Ohio Elections Commission (1995) says about it:

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.

There is a point where the protection of "anonymous" postings meets up with the liability of that speech, and the anonymous factor should never outweight responsiblity. Otherwise, anything could be said as anonymous, without any fear.

I agree that there comes a point where liability of speech outweighs anonymity. My belief is that point should not occur until a court has determined the validity of such claims. IE: For example in a libel case, it should be proven to the court without a doubt that a libelous action occurred before identifying the anonymous commenter.

Anonymity has been a free standing right since before the Constitution was penned. The Supreme Court has upheld this right on numerous occasions. I don't see how the internet changes any of that.

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I looked up the McIntyre v. Ohio Elections Commission (1995) and I feel I should give a bit of background on this particular case because when I was in the 5th grade in 1995, we were still using books from the 1970's for our education. I thought back on my small town's sentiment towards the age of our books. The only reason I think the state of Ohio would have had such a statute in place is so that any given disinformation the person handed out during a primary vote, they would be heals accountable for it. That law may have been abused a lot so maybe the State went overboard at one time. All I can tell you is that in speculation, McIntyer was trying to sway a vote with his false information, which would also be violating people's rights. Staying anonymous saved his life where I came from.

Here is how Ohio's public schools are funded. A percentage of your local property tax goes to the local Board of Education of that district. It is usually in the thousandths of a percent called a Mil Tax Levy. The no vote for a renewal, or raising of the wee percentage they take out from State funding, had been going on for at least 11 years. The tax levy basically needs to be raised for compensating for inflation, so in 1995, we had 1984 US dollars funding our schools.

Given my home town's sediments at the time, the ruling may have saved McIntyre's life. It allowed him the right to give his information that he truly believed in, regaurdless of reality and facts.

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Anonymous is generally to protect you from other citizens who may not agree and may make your life miserable for stating it. It's not intended to protect you if you make false, libelous, or have you statements.

Well then, the plaintiff should have to show that the statements meet the legal criteria for false or libelous statements before being permitted to request the anonymity be stripped from the defendants.
Are there 10,000 statements that meet that criteria? I'd be very surprised if there more than a handful that even come close.

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Anonymous is generally to protect you from other citizens who may not agree and may make your life miserable for stating it. It's not intended to protect you if you make false, libelous, or have you statements.

or, OR, read the first ammendment...

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

A common mistake when it comes to the constitution is to believe that it gives U.S. citizens rights. It does not. These "rights" are inherent to the citizens of the U.S. from our creator. The constitution does however Limit the government from passing and acting on any laws that violate these rights we do have.

Pretty genius way of phrasing things if you ask me and speaks directly to this particular case.

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'Cause You Know Our Public Officials

are there to protect the citizens. It appears that more and more though, the citizens need to be protected from the elected officials and their staff. Since they don't even seem to have a token familiarity with the laws they are supposed to be upholding. Have they never read the Consitution and the Amendments? You know, the ones they are supposed to uphold?

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You sure about that?

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men,

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This is wildly off-topic, doesn't concern me at all and I have no idea what the context is, but heck, I'll take a bite.

The only reason piracy is not OK is because, several centuries ago, some idiot wrote a paper. And in that paper, it said that piracy was NOT OK. Now, I am pretty sure made some sense at the time, but given the realities of modern society, which seem increasingly more incompatible with Copyright in its current form, I think that it is about time we started questioning the wisdom of the ancients.

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Thanks for your input. Query: Do you think it's weird that Mike has refused to answer this simple question for years? I do. I think it's clear that he's hiding something. Why else would he insist that he's answered the question, yet never point to where that answer can be found? Why else won't he just say "yes" or "no." Weird. Nothing slimy or dishonest about that.

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Simple yes or no question: Is it alright to have sex with a porcupine even if it is ugly? I don't want anything but a yes or no. If you don't answer with a single word (either yes or no) then I'll assume you're hiding something and dodging the question.

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Actually, that's not a simple yes or no question. There's a lot of factors in play. Example, what gender is the porcupine? Is he or she the legal age of consent? How drunk am I? Will we be listening to pirated music as we may or may not be getting it on?

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Looks like he answered you, funny you never got around to answering him.

"It's not okay because I don't think it's okay. You're asking a moral question. There is no answer to a moral question other than "that's what I believe." I don't think it's right to ignore the wishes of a content creator.

But that, of course, is entirely separate from what that content creator can do to deal with the fact that many (perhaps most) others have a different moral view on the issue.

Arguing over morals is a waste of time, because it doesn't move the discussion forward.

That's why I don't focus on moral questions, but practical questions. You, apparently, prefer not to do that sort of thing. It makes for silly grandstanding, but nothing useful."

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Oh so you can only understand one word answers? When he writes longer answer that states what he believes you have to say nonono I want a one word answer because I can tear your apart no matter which word you choose.

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Mike claims to have answered the question. I am merely trying to ascertain if the answer is complete. The yes or no question is designed to get to the bottom of his reasoning for thinking piracy is not OK (a belief that I don't think he actually has).

Yes or no: Is the *only* reason piracy is not OK is because it ignores the wishes of content creators?

All he has to do is answer. If yes, he's done. He's answered the question. If no, then he hasn't answered the question completely and I would like the answer that he claims to have given me (but obviously has not if the answer is incomplete).

Why is Mike so scared to talk directly about his beliefs? What is he hiding?

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I guess he is not answering your questions because your questions are bordering on obsessiveness. And no blogger or writer in their right mind can answer the questions you are asking because its so simple that you can take the answers and twist it to something he never meant.

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Ill be very kimd to you because you are a somewhat clueless user. I agree with what Ninja said and from my perspective, there are only so many ways to answer one question. You really just need to take a breather and settle down. I ask the writers valid questions from time to time, but I usually don't expect a response. It's nice to have one but honestly it's ok if they don't. It doesn't matter to me as long as I have a well thought out and valid statement and I get my point across thoroughly. Don't whine so much that the answer isn't what you expected, and don't complain if the writers don't respond to you.

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One word answer: No.

Multiple word answer: No that's the not the only reason. It's not even *a* reason why piracy is not OK. The only reason piracy is not OK is because it's against the law. What does the content creator have anything to do with it? The only entity the law cares about is the copyright holder? If you want the content creator's say to be so important, then what happens if the creator says it's OK to pirate even though the creator no longer holds the copyright?

Your turn: Yes or no: Is it OK to pirate the works of William Shakespeare?

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I wouldn't call it a dysfunction. Psychologically speaking, it may be some form of troll communication or mating call. Sorry Mike, I think you've got a cross-breeding troll on your hands. Oh and AC Troll, that's not a good way to get someone's attention, maybe you should study up on human psychology in stead of troll psychology.

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So if he says Yes you can rail on about all the other reasons "piracy is bad mkay!" if he says no then you can go on and on about how he hates creators. Do you think an 8 year old can't see through your loaded question? Of course his long thoughtful answer wasn't the answer you wanted.

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Why won't he answer the question? If there are more reasons why he thinks piracy is not OK, then he did not actually answer my question, and he is a liar. If there are no more reasons, then he has answered the question and as you point out, that makes him look really bad.

Why do you think he's avoiding answering at all costs? Because he knows he's in a corner.

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Your question cannot be answered the way you want because you start with the assumption that piracy is not OK. If one answers "yes", it would mean that piracy is not OK for that reason alone. If one answers "no", it means that piracy is not OK for other reasons. Your question is couched in bias. Find a non-biased way to ask and you might have a better chance of getting an answer. And by the way...
have you stopped beating your wife?

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The Rights Of Others

"The link explains the reasoning behind this, but the short summary is that Shelby County (home to Memphis) is trying to push back on a state law. The reasons Shelby is pushing back may be noble (it appears to feel that the reasons for the law itself are based on racism), but even so, that's no excuse for stripping away anonymity on thousands of comments."

Im all for free speech and the rights of privacy. But I don't believe, in this scenario at least, that those rights apply. It's a little known clause in the First Amendment that basically says you cannot violate another person's rights in the process in the free speech. That means if your comments are blatantly racist, you have a right to say it. If you are doing it and suppressing others of their rights in the process, then you have no right to say it.

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But due process and common sense would demand that a court of law actually determine that a crime had occurred before someone's right to anonymity is revoked based on the content of their statements. You don't get to unmask someone based on an accusation (much less unmask 10,000 persons) before you even officially determine if there's a reason to unmask them.

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I just think it would have to be painfully obvious that it did. I do agree though, due process is required. Still, I think any statements that are said with the intention to suppress the rights of others aren't covered.

@#1 (AC):

As if the Constitution was written only to cover "political" matters. Then, I wonder what all that "For the People" stuff was all about!

Anonymous speech is a major player in the 1st Amendment, and the right to it is most often upheld.

If, during the exercise of ANY form of Free Speech (not just the "anonymous" kind), it evokes the question of defamation (libel/slander) or false information, that question has to be answered BEFORE stripping that speech of its 1st Amendment protection.

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Title 18 violation?

Under Title 18, Chapter 13, Section 242 any attempt by a public official to use their official authority under color of law to deny or infringe upon any civil, statutory or constitutional right has committed a federal crime. Under section 241 of the same Title and Chapter, a conspiracy against rights is generally punished in the same way, but all participants generally face punishments one step more severe than a lone individual criminal.

A simple oral discouragement is worth a year in federal prison. Actual use of force can elevate it to ten years (a felony by any measure). If anyone dies as a result of the illegal act, life without parole or execution are on the table. That's 242. Under 241, most punishments are one step more severe for the same act.

A private citizen cannot break these laws. Only public officials can. Public officials include anyone elected to any government office, but also include appointed positions, such as police officer, judge, court clerk, animal control officer, and so forth.

So, a government agency that reasonably knows it's pursuing an unconstitutional goal is on shaky legal ground. And since no bureaucrat ever acts alone, well, that's a conspiracy, right?